Hersick v. State
| Docket Number: | 2003-KA-00151-SCT Linked Case(s): 2003-KA-00151-SCT |
|
| Supreme Court: | Opinion Link Opinion Date: 11-10-2004 Opinion Author: Dickinson, J. Holding: Affirmed |
|
| Additional Case Information: |
Topic: Attempted kidnapping - Right to speedy trial - Defective indictment - Motion in limine - Weight of evidence - Excessive sentence - Exclusion of testimony - Exculpatory evidence - Testimony of children - M.R.E. 601 - Record of unproven charges - Ineffective assistance of counsel - Removal of jury - Plea bargain Judge(s) Concurring: Smith, C.J., Waller and Cobb, P.JJ., Easley, Carlson and Randolph, JJ. Non Participating Judge(s): Diaz and Graves, JJ. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
|
| Trial Court: |
Date of Trial Judgment: 10-30-2002 Appealed from: George County Circuit Court Judge: James W. Backstrom Disposition: Hersick was convicted of attempted kidnaping and sentenced to ten years. District Attorney: Keith Miller Case Number: 20-01--10,118(1) |
|
| Party Name: | Attorney Name: | |||
| Appellant: | Larry Vincent Hersick |
ROSS PARKER SIMONS
LARRY VINCENT HERSICK PRO SE |
||
| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL BY: JOHN R. HENRY |
|
|
Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
|
| Topic: | Attempted kidnapping - Right to speedy trial - Defective indictment - Motion in limine - Weight of evidence - Excessive sentence - Exclusion of testimony - Exculpatory evidence - Testimony of children - M.R.E. 601 - Record of unproven charges - Ineffective assistance of counsel - Removal of jury - Plea bargain |
| Summary of the Facts: | Larry Hersick was convicted of attempted kidnaping, and sentenced to ten years' imprisonment. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Right to speedy trial Hersick argues that his right to a speedy trial was denied. The court must consider the length of delay, reason for delay, defendant’s assertion of his right, and prejudice to the defendant. The delay between arrest and trial was 611 days which is presumptively prejudicial. Most of the delay was due to Hersick or for good cause. Hersick asserted his right to a speedy trial on several occasions, but his first request was only a few weeks before the trial. Hersick has not shown how his case was prejudiced by the delay. He does not provide any explanation or analysis of how the delay adversely affected his trial, and the record does not indicate that the delay caused any of Hersick's witnesses to be unavailable, or unable to remember information helpful to his defense. Under the totality of the circumstances, Hersick’s constitutional right to a speedy trial was not violated. Issue 2: Indictment Hersick argues that the indictment was flawed because it failed to specify which form of attempted kidnaping was being charged. The indictment gave details of the alleged attempted kidnaping, including details of how the attempt failed. The indictment is not fatally flawed because it charged Hersick under two statutes. Nor is it fatally flawed because it failed to state which kind of kidnaping Hersick intended to commit. Hersick was on sufficient notice of the charge against him. Issue 3: Motion in limine Hersick argues that the court’s denial of his motion in limine resulted in the jury hearing his misleading and ambiguous statement to the Lucedale Police Department at the time of his booking. Hersick’s statement was admissible as a voluntary, spontaneous statement. Issue 4: Weight of evidence Accepting as true all the evidence in this case which supports the conviction, the conviction was not against the overwhelming weight of evidence. Issue 5: Excessive sentence Hersick argues that the court erred by imposing a heavier sentence than was offered to him pretrial, and that this heaver sentence was a direct result of his exercise of his constitutional right to a trial by jury. The imposition of a sentence, if it is within the limits prescribed by statute, is a matter left to the sound discretion of the trial court. In addition, there is nothing in the record that demonstrates the court imposed the maximum sentence to punish Hersick for exercising his right to a jury trial. Issue 6: Exclusion of testimony Hersick argues that the failure of the mother of the victim to testify violated his due process. He also argues that the court erred by not allowing a Wal-Mart employee to testify, because the Wal-Mart employee was watching him and could have offered proof of his innocence. Because there is nothing to indicate that the court refused to allow the witnesses to testify, this issue is without merit. Issue 7: Exculpatory evidence Hersick argues that it was error not to allow his 60 pound backpack into evidence at trial to be used as exculpatory evidence, because it would have demonstrated that he could not have kidnaped someone with it on his back. In order to play a significant role, the exculpatory nature and value of the evidence must have been apparent before the evidence was destroyed and of such a nature that the defendant could not obtain comparable evidence by other reasonable means. Hersick does not address whether comparable evidence could have be procured. Furthermore, there was no evidence that Hersick had his backpack on his back at the time of the attempted kidnaping. Issue 8: Testimony of children Hersick argues that, since under the law of Mississippi, a child under the age of thirteen cannot be charged with a felony, the victim and her brother should not have been allowed to testify. Pursuant to M.R.E. 601, it is presumed that the children were competent witnesses, absent some indication that they were not. After studying the children’s testimony, it is clear that they were competent witnesses. Issue 9: Record of unproven charges Hersick argues that the court erred by allowing a police officer to read a record of unproven charges at his sentencing. There was no error in the discussion of Hersick’s criminal history at sentencing. Issue 10: Ineffective assistance of counsel Hersick argues that his counsel was ineffective for failing to subpoena the victim’s mother or the father to testify at trial. He also argues that his counsel failed to investigate his version of the facts. Complaints concerning counsel’s failure to file certain motions, call certain witnesses, ask certain questions, and make certain objections fall within the ambit of trial strategy. Issue 11: Removal of jury Hersick argues that his counsel erred by not objecting to the jury being removed from the courtroom while he examined an officer. There was no error or prejudice to Hersick. The testimony consisted of hearsay and was irrelevant. Issue 12: Plea bargain Hersick argues that the court violated his Sixth Amendment rights when he was not represented by counsel when offered the plea bargain. He also argues that the judge took part in the plea bargain by asking him how he pled. However, the record fails to show any such court appearance |
Home | Terms of Use | About the JDP | Feedback | Using JDP | MC Law Library | Mississippi Supreme Court
